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Lord Falconer of Thoroton: My Lords, was it that exemption in the code of practice to which the noble Lord has referred which prevented the disclosure of the BSE material between 1994 and 1997?

Lord Mackay of Ardbrecknish: My Lords, I am relieved to say that, fortunately, I was nowhere near the BSE issues. So I am afraid that I do not know the answer to that question.

Referring to this clause in Committee--which was then Clause 33--the noble Lord, Lord Goodhart, said:

I think that the noble Lord recognises his words.

    "It plainly requires a harm test to make it acceptable, as well as other changes that we shall be considering shortly. It seems to me that this represents a step backwards, both from the code and from the White Paper. Therefore, I very much hope that the Government will see their way to changing their view on the subject of these amendments".--[Official Report, 24/10/00; col. 278.]

I very much hope so too. I beg to move.

Baroness Whitaker: My Lords, as the noble Lord, Lord Mackay, said, this amendment is indeed relevant

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to Amendment No. 43. However, it is particularly relevant for the following reason. My understanding of the explanation of the noble Lord, Lord Lester, of Amendment No. 43 is that it would send a signal to the public, and to the public service, that there is a public interest in the disclosure of the factual information behind decision making. In effect, it is a purpose clause and one that implies a strong presumption of entitlement to the factual information concerned. If that is the case--it would be helpful if my noble and learned friend the Minister would also confirm this--there is less need for the amendments of the noble Lord, Lord Mackay of Ardbrecknish.

Lord Goodhart: My Lords, in the absence of my noble friend Lord Lester, I am happy to respond to the invitation of the noble Baroness, Lady Whitaker. The noble Lord, Lord Mackay of Ardbrecknish, referred to a speech of mine made in Committee, during which I pointed out the importance of including a harm test in relation to the non-disclosure of background information relating to policy decisions.

I do not wish to repeat what I said in response to the speech of the noble Lord, Lord Brennan, on Amendment No. 36; nor do I wish to return to what I said earlier in the debate. However, as a result of amendments that have been accepted to Clause 2, and on the assumption that our Amendment No. 43 will be accepted, we now have a harm or prejudice test. It is true that, for better or worse, the Government refuse in so many words to spell out that fact. Following the Government's acceptance that the public do have a particular interest in the disclosure of factual information, together with their acceptance of the principle that disclosure has priority unless there is good reason for non-disclosure, it seems to me that what we now have is no more and no less than a harm test.

Lord Falconer of Thoroton: My Lords, the contributions of the noble Lord, Lord Lucas, on freedom of information have been based on the premise that the BSE material should be the bench-mark by which we measure this particular Bill. The noble Lord, Lord Mackay of Ardbrecknish, frequently says that the code of practice is better than the Freedom of Information Bill; indeed, he has said so repeatedly during both the Committee and Report stages. However, when confronted with the BSE test, he is unable to explain to us why the code of practice produced not one material document in relation to the BSE inquiry. Therefore, if we apply the bench-mark of the noble Lord, Lord Lucas, the code of practice does not look very convincing.

The amendment now before us is important because it raises the issue that was at the heart of this evening's earlier debate on Amendments Nos. 42 and 43. The Government have always said that there should be a class exemption under Clause 34 to provide the protection in respect of which policy decisions could be taken. However, that is subject to Clause 2, which, with the addition of the amendments tabled by the Liberal Democrats, now means that not just factual

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material but all material--whether it be advice or analysis--must be disclosed, unless there is a good reason for it not to be disclosed.

Moreover, if the factual material "steer" included in the amendment of the Liberal Democrats is accepted and inserted into the Bill, that will apply not only to factual material in relation to decisions that have already been made; it will apply also to factual material that is intended to be used in the future in relation to policy decisions. So, again, if we apply the bench-mark of the noble Lord, Lord Lucas, regarding BSE, there are not the inhibitions referred to in the code of practice. It provides a structure within which that material could and would have been disclosed. I do not necessarily accept the way that the noble Lord, Lord Goodhart, puts it, but his provision aims to achieve the same objectives that those promoting this amendment seek. Therefore, I respectfully suggest to the noble Lord, Lord Mackay of Ardbrecknish, that he considers not only the effects of the amendments that have been made, in particular to Clause 2, but also the effect of Amendment No. 43 to Clause 34--if it is accepted--before he presses the amendment.

Lord Mackay of Ardbrecknish: My Lords, I thank the Minister for that answer which I think I followed. If the noble Viscount, Lord Colville of Culross, finds some of this difficult to understand, I assure him that some of us who are not lawyers find it almost impossible to understand. I shall rely on what some of the lawyers said who were critical of the measure.

When the Minister chides me with regard to the code of practice and BSE, I sometimes wonder whether the Government are imposing a lesser test than was imposed in the code of practice. If the code of practice did not allow for information on BSE to be disclosed, how does a lesser test allow for that? The Minister is indicating that it is not a lesser test. I shall seek to withdraw my amendment and give further consideration to the matter.

Like the noble Viscount, Lord Colville of Culross, I shall have to read the Bill when it is reprinted after this stage in order to ascertain exactly what the Government are getting at. It might have been better if there had been some freedom of information last week when we could have been given an explanation, perhaps even by letter, with regard to the amendments the Government and the Liberal Democrats had agreed to table. A little freedom of information in that regard might have been much more helpful to us than the kind of secrecy and press leaks on which we were forced to rely. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 40 to 42 not moved.]

Lord Goodhart moved Amendment No. 43:

    Page 20, line 36, at end insert--

("( ) In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular

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public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 44:

    Page 20, line 37, at end insert--

(""government department" has the meaning given in section 83 with the omission of the words "and any other body or authority exercising statutory functions on behalf of the Crown";").

The noble Lord said: My Lords, in moving Amendment No. 44, I should like to speak also to Amendment No. 58. The class exemptions in Clause 34 are available only to a government department. Other public authorities which may seek to withhold information about policy formulation would have to rely on the exemptions in Clause 35(2)(b) and (c). The precise definition of "government department" is therefore of some interest. Clause 83 contains the definition which makes it clear that the term extends beyond ordinary ministerial departments to,

    "any other body or authority exercising statutory functions on behalf of the Crown".

This means, I presume, that bodies such as the Health and Safety Executive and the Food Standards Agency which exercise functions on behalf of the Crown are government departments under the Bill. Other regulatory bodies may also fall into this category, but I believe that the two I have mentioned do.

There is also a list of public authorities in Schedule 1 but they do not include bodies such as Oftel, Ofwat, Ofgem--I hope that no one asks me to spell out what those letters stand for as we could be here all night--the Office of the Rail Regulator, the Financial Services Authority, the Crown Estate and so on. These may be automatically covered because they exercise functions on behalf of the Crown. Alternatively, some of them may be agencies of a parent government department, in which case my amendments would make no difference to their status. I shall be interested to hear what the Minister has to say.

The wide definition is helpful in that it automatically sweeps up bodies into the scope of the Bill by virtue of the first entry of Part I of Schedule 1, which provides that any government department is a public authority. But it also means that bodies which are government departments only because of the definition in Clause 83 also enjoy some of the wider protections for policy formulation offered by Clause 34--the very matters about which we spoke. This point has not been considered at any stage of the Bill. I am not sure whether the Government intend bodies like the HSE and the FSA to enjoy this wider protection; it may be an incidental effect of the drafting.

Amendment No. 44 provides that bodies which are government departments merely because they exercise statutory functions on behalf of the Crown are not entitled to invoke the policy formulation exemption. This will be restricted to ministerial government

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departments. The remaining government departments will be placed in the same category as other public authorities which would have to justify the withholding of internal policy documents under the relevant provisions of Clause 35.

Amendment No. 58 relates to a similar point arising in relation to Clause 52(1)(a). The ministerial veto can be exercised in relation to a government department or any other authority designated for this purpose by an order made by the Secretary of State. Until now it has been assumed that only ministerial government departments would fall into the former category, but it may be that a variety of other authorities are also government departments because of the breadth of the definition of the term in Clause 83. Again this might mean that the Health and Safety Executive and the Food Standards Agency and any other body exercising statutory functions on behalf of the Crown could ask Ministers to exercise a veto on their behalf. I believe that it is inappropriate that safety bodies of that kind should enjoy a veto in this way. My amendment would limit the veto to ministerial government departments only. I beg to move.

10 p.m.

Lord Bassam of Brighton: My Lords, the term "government department" is defined for the purposes of the Bill in Clause 83 so that it is clear to the public, the public authorities and the commissioner what is meant by that term.

Amendments Nos. 44 and 58 seek to alter this definition for the purposes of the application of the term in Clause 34--the formulation of government policy, and so on, and the exception certificate procedure in Clause 52.

I understand that by the amendments the noble Lord seeks to limit the scope of the protection provided to certain government bodies by the exemptions at Clause 34 and the certification procedure at Clause 52. We have debated at length in this House why it is necessary that the central functions of government should attract the exemptions provided by Clauses 34 and 52. The Government have listened to the arguments and have moved, I think considerably, to limit the scope of the exemptions. But the Government cannot accept that the distinction which the noble Lord now seeks to identify between ministerial and non-ministerial government departments is sensible. The noble Lord clearly does not accept or perhaps understand the reality of how governments are structured in a modern state. Government functions are no longer all performed solely by the central ministerial government departments. The provisions in the Bill which are specifically focused on government must reflect this and the current wording does exactly that.

The term "government department" has a generally accepted meaning which includes bodies other than the classic ministerial central government departments including government agencies and non-ministerial government departments.

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